Click here to close now.




















Welcome!

News Feed Item

Baker Botts Win for Client McWane, Inc. Breaks FTC's 20-Year Streak

First Time a Commission Ruling Favors a Defendant in Nearly Two Decades

WASHINGTON, Feb. 6, 2014 /PRNewswire/ -- The Federal Trade Commission today publicly dismissed six of seven conspiracy and monopolization charges against Baker Botts client McWane, Inc.; the lone remaining count was a split decision that drew a lengthy and sharp dissent from Commissioner Joshua D. Wright. The dissent is available here

(Logo: http://photos.prnewswire.com/prnh/20120831/MM66344LOGO)

The dismissals marked the first time in nearly two decades that the Commission has ruled against itself following an administrative trial in its in-house court.

The dismissals are the culmination of a multi-year odyssey for McWane that resulted in a two-month trial before Administrative Law Judge D. Michael Chappell in 2012. Judge Chappell subsequently wrote an opinion rejecting the Commission's allegations that McWane colluded with its primary competitors to fix prices. Instead, he found that McWane priced independently at all times and routinely priced below rival suppliers "in order to beat prices being offered by its competitors, which is a pro-competitive purpose." 

Judge Chappell rejected the government's case as a "daisy chain of assumptions" that were weak, unsupported, strained and pure speculation. His complete opinion is available here.

Baker Botts Partner Joseph Ostoyich, who tried the case for McWane and argued the appeal before the Commission, said: "We knew we were fighting an uphill battle, given their long track record in consistently ruling in their own favor, but we decided that an aggressive defense was the way to go and we took the fight to them at trial."

"Our trial team from Baker Botts -- including Partner Erik Koons -- and our co-counsel at Maynard, Cooper, & Gale, P.C. did an outstanding job crossing the government's witnesses and putting on our case," Ostoyich said.  "Our strong attack at trial dismantled their 'evidence' and forced several of the Commissioners, to their credit, to reassess six of the seven counts in the complaint they issued. The dismissals of those counts demonstrate that the facts and the law were on McWane's side and proved to be the determining factor in the ruling made public today. We expect to knock the remaining flawed count out on appeal for the reasons Commissioner Wright has made clear."

McWane General Counsel James M. Proctor, II, said: "Knowing the FTC's track record for home cooking we knew this would be a difficult fight. However, we decided to stand on principle, and had the highest confidence that Joe Ostoyich and his team would demonstrate the injustice of this persecution. They did an excellent job, and the result is a testament to their skill and professionalism." 

A copy of McWane's news release concerning today's FTC ruling is available here.

The Commission has recently come under fire on Capitol Hill and in the press for a self-proclaimed 20-year winning streak that has led lawmakers to criticize it for "an unbeaten streak that Perry Mason would envy" and others to complain that it operates under "house rules" like a Las Vegas casino. 

Commissioner Wright's lengthy dissent on the lone remaining count criticized the Commission's decision for a "dearth of record evidence" that "failed to establish . . . that McWane's conduct was exclusionary" and "fails totally to establish, as it must under the antitrust laws, that McWane's conduct harmed competition."

The Baker Botts Antitrust and Competition practice is one of the most renowned in the world. This highly-ranked group of lawyers regularly handles high profile, "bet the company" matters. A complete background on the practice is available here.

About Baker Botts L.L.P.
Baker Botts is an international law firm of approximately 700 lawyers practicing throughout a network of 15 offices around the globe. Based on our experience and knowledge of our clients' industries, we are recognized as a leading firm in the energy, technology and life sciences sectors. Throughout our 174-year history, we have provided creative and effective legal solutions for our clients while demonstrating an unrelenting commitment to excellence. For more information, please visit BakerBotts.com.

Follow us on LinkedIn and Twitter.

SOURCE Baker Botts

More Stories By PR Newswire

Copyright © 2007 PR Newswire. All rights reserved. Republication or redistribution of PRNewswire content is expressly prohibited without the prior written consent of PRNewswire. PRNewswire shall not be liable for any errors or delays in the content, or for any actions taken in reliance thereon.

Latest Stories
In their Live Hack” presentation at 17th Cloud Expo, Stephen Coty and Paul Fletcher, Chief Security Evangelists at Alert Logic, will provide the audience with a chance to see a live demonstration of the common tools cyber attackers use to attack cloud and traditional IT systems. This “Live Hack” uses open source attack tools that are free and available for download by anybody. Attendees will learn where to find and how to operate these tools for the purpose of testing their own IT infrastructu...
DevOps Summit, taking place Nov 3-5, 2015, at the Santa Clara Convention Center in Santa Clara, CA, is co-located with 17th Cloud Expo and will feature technical sessions from a rock star conference faculty and the leading industry players in the world. The widespread success of cloud computing is driving the DevOps revolution in enterprise IT. Now as never before, development teams must communicate and collaborate in a dynamic, 24/7/365 environment. There is no time to wait for long development...
Too often with compelling new technologies market participants become overly enamored with that attractiveness of the technology and neglect underlying business drivers. This tendency, what some call the “newest shiny object syndrome,” is understandable given that virtually all of us are heavily engaged in technology. But it is also mistaken. Without concrete business cases driving its deployment, IoT, like many other technologies before it, will fade into obscurity.
Whether you like it or not, DevOps is on track for a remarkable alliance with security. The SEC didn’t approve the merger. And your boss hasn’t heard anything about it. Yet, this unruly triumvirate will soon dominate and deliver DevSecOps faster, cheaper, better, and on an unprecedented scale. In his session at DevOps Summit, Frank Bunger, VP of Customer Success at ScriptRock, will discuss how this cathartic moment will propel the DevOps movement from such stuff as dreams are made on to a prac...
SYS-CON Events announced today that DataClear Inc. will exhibit at the 17th International Cloud Expo®, which will take place on November 3–5, 2015, at the Santa Clara Convention Center in Santa Clara, CA. The DataClear ‘BlackBox’ is the only solution that moves your PC, browsing and data out of the United States and away from prying (and spying) eyes. Its solution automatically builds you a clean, on-demand, virus free, new virtual cloud based PC outside of the United States, and wipes it clean...
With the proliferation of connected devices underpinning new Internet of Things systems, Brandon Schulz, Director of Luxoft IoT – Retail, will be looking at the transformation of the retail customer experience in brick and mortar stores in his session at @ThingsExpo. Questions he will address include: Will beacons drop to the wayside like QR codes, or be a proximity-based profit driver? How will the customer experience change in stores of all types when everything can be instrumented and a...
Contrary to mainstream media attention, the multiple possibilities of how consumer IoT will transform our everyday lives aren’t the only angle of this headline-gaining trend. There’s a huge opportunity for “industrial IoT” and “Smart Cities” to impact the world in the same capacity – especially during critical situations. For example, a community water dam that needs to release water can leverage embedded critical communications logic to alert the appropriate individuals, on the right device, as...
Manufacturing connected IoT versions of traditional products requires more than multiple deep technology skills. It also requires a shift in mindset, to realize that connected, sensor-enabled “things” act more like services than what we usually think of as products. In his session at @ThingsExpo, David Friedman, CEO and co-founder of Ayla Networks, will discuss how when sensors start generating detailed real-world data about products and how they’re being used, smart manufacturers can use the ...
WebRTC services have already permeated corporate communications in the form of videoconferencing solutions. However, WebRTC has the potential of going beyond and catalyzing a new class of services providing more than calls with capabilities such as mass-scale real-time media broadcasting, enriched and augmented video, person-to-machine and machine-to-machine communications. In his session at @ThingsExpo, Luis Lopez, CEO of Kurento, will introduce the technologies required for implementing thes...
Organizations from small to large are increasingly adopting cloud solutions to deliver essential business services at a much lower cost. According to cyber security experts, the frequency and severity of cyber-attacks are on the rise, causing alarm to businesses and customers across a variety of industries. To defend against exploits like these, a company must adopt a comprehensive security defense strategy that is designed for their business. In 2015, organizations such as United Airlines, Sony...
SYS-CON Events announced today that HPM Networks will exhibit at the 17th International Cloud Expo®, which will take place on November 3–5, 2015, at the Santa Clara Convention Center in Santa Clara, CA. For 20 years, HPM Networks has been integrating technology solutions that solve complex business challenges. HPM Networks has designed solutions for both SMB and enterprise customers throughout the San Francisco Bay Area.
Any Ops team trying to support a company in today’s cloud-connected world knows that a new way of thinking is required – one just as dramatic than the shift from Ops to DevOps. The diversity of modern operations requires teams to focus their impact on breadth vs. depth. In his session at DevOps Summit, Adam Serediuk, Director of Operations at xMatters, Inc., will discuss the strategic requirements of evolving from Ops to DevOps, and why modern Operations has begun leveraging the “NoOps” approa...
While many app developers are comfortable building apps for the smartphone, there is a whole new world out there. In his session at @ThingsExpo, Narayan Sainaney, Co-founder and CTO of Mojio, will discuss how the business case for connected car apps is growing and, with open platform companies having already done the heavy lifting, there really is no barrier to entry.
To assist customers with legacy Windows Server 2003 that is no longer supported by Microsoft, Racemi has introduced fixed price packages for upgrading and migrating Windows Server 2003 servers to either Windows 2008 R2 or Windows 2012 R2 and the choice of Amazon Web Services (AWS) or SoftLayer cloud. "We're extending a lifeline by upgrading the legacy servers to more modern Windows Server platforms while taking advantage of cloud computing," said James Strayer, vice president of product managem...
All major researchers estimate there will be tens of billions devices - computers, smartphones, tablets, and sensors - connected to the Internet by 2020. This number will continue to grow at a rapid pace for the next several decades. With major technology companies and startups seriously embracing IoT strategies, now is the perfect time to attend @ThingsExpo, November 3-5, 2015, at the Santa Clara Convention Center in Santa Clara, CA. Learn what is going on, contribute to the discussions, and e...